Shri Ramesh Kumar & Ors. vs Shri Satya Dev
2011 Latest Caselaw 2115 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment delivered on: 20.04.2011

+                        RSA No.20/2004

SHRI RAMESH KUMAR & ORS.
                                                     ........Appellants
                   Through:    Mr. Sanjeev Sachdeva and Mr. Preet
                               Pal Singh, Advocates.
                   Versus

SHRI SATYA DEV
                                                    .......Respondent
                   Through:    Mr. Ashish Malhotra, Advocate.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. Oral

1. This appeal has impugned the judgment and decree dated

31.07.2003 which had endorsed the findings of the trial Judge

dated 04.02.1989 whereby the suit filed by the plaintiff Harikesh

seeking a declaration to the effect that the agreement to sell dated

28.05.1980 executed between himself and the defendant be

declared null and void had been dismissed. Relief seeking decree of

permanent injunction had also been declined.

2. The plaintiff is stated to be the allottee and lessee of shop

No. 217, Block Z, Naraina Ware Housring Scheme, Naraina, New

Delhi (hereinafter referred to as the „suit shop‟). Sale deed or lease

deed of the said shop had not been executed or registered in his

favour. Defendant No.1 was the partner of the plaintiff. In good

faith, defendant No.1 got executed certain documents from the

plaintiff. The plaintiff was an illiterate man. The aforenoted

documents comprised of an agreement to sell dated 28.05.1980

and a receipt and Will of the same date; two special power of

attorneys dated 28.05.1980 had also been got executed by the

plaintiff. In terms of the aforenoted agreement, the plaintiff had

agreed to sell this shop to the defendant for a consideration of

Rs.1,50,000/- but in the agreement to sell dated 28.05.1980, the

consideration was wrongly mentioned as Rs.11,500/-. In fact, it had

been agreed between the parties that the suit shop would be sold

by the plaintiff to the defendant for a total amount of Rs.1,50,000/-

and Rs.11,500/- was paid only as an earnest money. Plaintiff was

under the bonafide impression that the agreed price of the shop

was Rs.1,50,000/- and not Rs.11,500/-. He came to know about this

fraud having been played upon him when the present suit was

filed.

3 The defendant has contested the suit. Contention was that

the agreement to sell had been entered into between the parties

with open eyes; it had been agreed that the sale consideration

would be Rs.11,500/- and the entire sale consideration has since

been paid to the plaintiff; defendant had also been given possession

of the suit shop, he could not be dispossessed.

4 On the pleadings of the parties, 13 issues were framed. Oral

and documentary evidence was led. The trial Judge examined the

entire oral and documentary evidence; the suit of the plaintiff stood

dismissed. While disposing of issue No. 3, the trial Judge was of the

view that the plaintiff has no saleable title in the suit property. Suit

shop has not been registered in his name; yet since the plaintiff

had admitted that he has executed the aforenoted documents

including the agreement to sell dated 28.05.1980; his defence that

he being an uneducated man did not know the contents of the said

documents was disbelieved. The Court was of the view that the

plaintiff has failed to prove that the aforenoted document had been

got executed by misrepresentation; he was not entitled to

cancellation of the said documents.

5     This was endorsed in the first appeal.


6     This is a second appeal. It is still at its admission stage. On

behalf of the appellant, it has been urged that the plaintiff not

having any saleable title in the suit property could not have

entered into an agreement to sell; such an action was in fact a void

transaction and this has raised a substantial question of law. He

has relied upon the provisions of Section 56 of the Indian Contract

Act, 1872.

7 Arguments have been refuted. It is pointed out that this is a

second appellate court and no substantial question of law has

arisen; there are two concurrent findings of fact against the

appellant.

8 Perusal of the record shows that the appellant/defendant has

nowhere denied that he had not entered into the aforenoted

documents of which he now seeks cancellation. His contention was

that these documents had been got executed by him through

misrepresentation. Issues No. 6 & 7 had been specifically framed

on this count. The impugned judgment has reaffirmed the findings

of the trial Judge on the aforenoted issues. Both the two courts

below were of the view that the defendant had signed these

documents voluntarily and there was no duress or fear upon him at

that time; question of misrepresentation did not arise. These fact

findings do not call for any interference. There is no perversity on

this count. This plea of the appellant is without any merit.

9 The question of applicability of Section 56 of the Contract Act

also does not arise. This provision reads as under:-

"56. Agreement to do impossible act.- An agreement to do an act impossible in itself is void.

Contract to do act afterwards becoming impossible or unlawful.- A contract to do an act which, after the conract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.

Compensation for loss through non-performance of act known to be impossible or unlawful.- Where one person has promised to something which he knew, or, with reasonable diligence, might have know, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promise for any loss which such promise sustains through the non-performance of the promise."

10 Essential idea upon which the doctrine of frustration is based

is that of impossibility of performance of a contract. The changed

circumstances make the performance of the contract impossible

and the parties are absolved from the further performance of it as

they did not promise to perform an impossibility. This doctrine of

frustration is really an aspect or part of the law of discharge of

contract by reason of a supervening impossibility or illegality of the

act agreed to be done. In the instant case, there has been no such

intervening event or changed circumstances for the applicability of

this principle. The agreement to sell dated 28.05.1980 in fact

clearly shows that the first party who is the appellant/plaintiff was

fully aware that this property has been leased out to him by the

DDA; reference has been made to the effect that the unearned

increment/any penalty, if any, imposed will be borne by the second

party. The plea of the doctrine of „frustration‟ as sought to be set

up by the appellant is not available to him.

11 Substantial questions of law have been embodied on page 2

of the body of the appeal. No such substantial question of law has

arisen. There is no merit in this appeal. Dismissed.

(INDERMEET KAUR) JUDGE APRIL 20, 2011 A